ByLawyers News and Updates

Law Practice Certificates – QLD

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Law Practice Certificates are required in personal injury claims and workers’ compensation claims from 31 October 2022.

The Personal Injuries Proceedings and Other Legislation Amendment Act 2022 (QLD) has now fully commenced. The Act has a number of important implications for personal injury proceedings, motor vehicle accident claims, and workers’ compensation claims in Queensland. See the previous By Lawyers News and Updates post: Personal Injuries – QLD.

Claim farming prohibited

The Act amends both the Personal Injuries Proceedings Act 2002 and the Workers’ Compensation and Rehabilitation Act 2003 to address the practice of claim farming.

Claim farming is mainly where a third party approaches potential clients to pressure them into making a compensation claim for personal injuries. Claim farmers sell the clients’ information to a legal practitioner, or claims management service provider, to bring the claim. It can also occur when lawyers make direct approaches to injured persons or inappropriately seek referrals.

Law Practice Certificates

The amendments introduce a requirement for practitioners acting in personal injuries and workers’ compensation matters to certify to claimants and respondents or insurers, at various stages of claims, that claim farming has not occurred.  This certification takes the form of a Law Practice Certificate which must be given to the claimant and the respondent/insurer before the claim commences, or shortly after the lawyer becomes instructed if the claim is already on foot, and at other stages of the proceedings such as when advising on a settlement.

Failing to provide a Law Practice Certificate when required and providing a false or misleading certificate are offences.

The obligation to provide Law Practice Certificates already exists under Division 2A of the Motor Accident Insurance Act 1994. These amendments bring the requirements for common law and workers’ compensation claims into line with motor vehicle accident claims. The form of the certificate previously used for motor accident claims has been replaced with a newly approved version, which must be used for all three types of claims.

Publication updates

Relevant amendments have been made to the commentaries in the By Lawyers Queensland Personal Injury, Workers’ Compensation, and Motor Vehicle Accident Claim publications.

Law Practice Certificate forms are being finalised and will be added to the matter plans shortly.

Compensation indexation – NSW

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Various amendments for compensation indexation have been applied to the By Lawyers Injuries publications in New South Wales.

Each year on 1 October the various statutory compensation schemes and legislative caps have indexation applied to the maximum amounts recoverable by injured persons.  For 2022 these changes are contained in the following pieces of subordinate legislation:

  • Civil Liability (Non-economic Loss) Amendment Order 2022
  • Motor Accident Injuries (Indexation) Amendment Order (No 2) 2022
  • Motor Accidents (Determination of Non-Economic Loss) Amendment Order 2022
  • Motor Accidents Compensation (Determination of Loss) Order 2022
  • Workers Compensation (Indexation) Amendment Order (No 3) 2022

Wherever applicable, the commentary and precedents – particularly the Retainer instructions precedents – have been updated for these changes in the following By Lawyers publications:

By Lawyers always update our publications for statutory indexing. This typically occurs in most jurisdictions on 1 January, 1 July, and, as in the case of NSW injuries legislation, 1 October each year.

Personal injuries – QLD

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The Personal Injuries Proceedings and Other Legislation Amendment Act 2022 (QLD) has a number of important implications for personal injuries proceedings, motor vehicle accident claims, and workers compensation claims in Queensland.

Costs for speculative personal injuries claims

Sections 346 and 347 of the Legal Profession Act  2007 (QLD) are amended to provide that certain items, including interest and credit facility fees, are included as legal costs rather than disbursements for the purpose of the maximum payment permissible for the conduct of a speculative personal injury claim. Counsel’s fees are generally excluded from these items, if counsel’s services are provided after the notice of claim is given, or urgent proceedings are commenced.

Section 347(8) defines the relevant additional items, which can include any disbursements prescribed by regulation.

Workers’ compensation – terminal condition claims

The Amending Act reinstates a time frame in s 39A of the Workers’ Compensation and Rehabilitation Act 2003 which defines a terminal condition for the purpose of a worker’s compensation claim. For injuries from 1 July 2022 a terminal condition of a worker is one that a doctor certifies is expected to terminate the worker’s life within five years after the diagnosis. The insurer still needs to accept the doctor’s diagnosis, otherwise, there will be a dispute over whether the condition is terminal or not.

Claim farming prohibited

The Act amends both the Personal Injuries Proceedings Act 2002 and the Workers’ Compensation and Rehabilitation Act 2003 to prevent claim farming.

Claim farming is where a third party approaches potential clients to pressure them into making a compensation claim for personal injuries. Claim farmers sell the clients’ information to a legal practitioner, or claims management service provider, to bring the claim.

The Act introduces a requirement for practitioners acting in personal injuries and workers’ compensation matters to certify to claimants and respondents or insurers, at various stages of claims, that claim farming has not occurred. A breach is a criminal offence. These provisions effectively already exist for claims under the Motor Accident Insurance Act 1994. The commencement of these provisions, and the approved form for Law Practice Certificates, await proclamation.

Publication updates

Relevant amendments have been made to the commentaries in the By Lawyers Queensland Personal Injuries, Motor Vehicle Accident Claims and Workers’ Compensation publications.

Transport Accident Claims – VIC

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Amendments that extend entitlements to compensation under the transport accident claims legislation have commenced.

Part 3 of the Road Safety Legislation Amendment Act 2022  commenced on 6 July 2022. It amends the Transport Accident Act 1986 to extend benefits for claimants and their supporting families. The definition of a dependent child is amended to include a child who is under the age of 18 years, rather than 16 years. The definition of an immediate family member is amended to include a grandchild, alongside a partner, parent, grandparent, child, and sibling.

The extension of the definitions means that family counseling is available for the grandchildren of grandparents severely injured or killed in a transport accident. Claims can also be made for travel or accommodation expenses for grandchildren visiting their injured grandparent in hospital after a transport accident or attending the funeral of their, grandparent killed in a transport accident and to provide a replacement carer if the grandparent was the primary carer for the grandchild.

New provisions have been added to the Transport Accident Act that deal with the pre-accident weekly earnings for various types of earners who were, immediately before a transport accident, already receiving a weekly payment in respect of total or partial loss of earnings suffered as a result of, or materially contributed to by, an injury resulting from a previous transport accident.

The amending Act also clarifies the Transport Accident Commission’s capacity to disclose information to other statutory agencies and expands its ability to prosecute fraud offences committed with respect to transport accident claims.

The full commentary in the By Lawyers Transport Accident Claims (VIC) publication has been updated accordingly.

Unrelated provisions of the amending Act which affect the Road Safety Act 1986 have not yet commenced. These will be the subject of further update and publication amendments in due course.

1 July updates – All states

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1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year impacting many different areas of law, and therefore numerous By Lawyers publications.

These updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, and penalty units for fines for various criminal offences and civil penalty provisions.

By Lawyers always monitor and apply these changes for our subscribers. Each year we ensure our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

  • Conveyancing and Property;
  • Business and Franchise;
  • Criminal;
  • Litigation;
  • Estates;
  • Injuries; and
  • Employment.

Quite separately, there is also usually a raft of new and amending legislation from both Commonwealth and state parliaments which is set to commence on 1 July. This year is no different in that regard. By Lawyers have made various substantive amendments to a number of publications to account for the commencement of such legislation. Please see the various other By Lawyers News and Updates posts dealing with those updates.

By Lawyers always keep our content – and our subscribers – up to date!

Motor accidents – NSW

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There have been a number of small but important amendments to NSW motor accidents legislation.

Relevant provisions of the Motor Accidents and Workers Compensation Legislation Amendment Act 2021 commenced on 16 June 2022.

The amendments include:

  • The definition of pre-accident weekly earnings in the Motor Accident Injuries Act 2017 has been amended to include consideration of any increased earnings to which the claimant would have been entitled had the injury not occurred. Circumstances such as a change of job, a planned move from part-time to full-time hours or a previously negotiated pay increase within 12 months before the accident can be taken into account when determining the amount of statutory benefits payable for lost income.
  • The calculation of weekly statutory benefits for lost earnings now takes into account any increase in the claimant’s actual post-accident earnings.
  • Clarification that anyone injured in a no fault motor vehicle accident, and who has more than a minor injury, is entitled to receive statutory benefits past the 26 week cut-off period. This amendment addresses an anomaly identified by the Supreme Court in AAI Limited v Singh [2019] NSWSC 1300, when the court noted: Notwithstanding that a path through the labyrinth of Pts 3 and 5 of the Motor Accidents Injuries Act has been found for the purposes of resolving this proceeding, it is apparent that these provisions, Pt 5 in particular, require careful and detailed reconsideration. Amendment will be necessary if a spate of litigation generated by the obscurities of these provisions is to be avoided.

The commentary in the By Lawyers Motor Vehicle Accidents – Accidents from 1 December 2017 guide has been updated accordingly. The link to AAI Limited v Singh which was added after that case was decided in 2019 has been removed.

New personal injury guide – NSW

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By Lawyers are pleased to announce the publication of a new personal injury guide: Personal injury – Acting for the defendant.

With a separate matter plan, commentary and precedents, the new guide is now available along with Personal injury – Acting for the plaintiff.

The new Personal injury – Acting for the defendant guide concentrates on the defence of negligence claims to which the provisions of the Civil Liability Act 2002 apply, while also covering the common law to some extent, with regard to intentional torts. It assists practitioners acting for defendants and insurers, in both un-litigated and litigated personal injury claims.

The commentary discusses all the relevant considerations and necessary steps to investigate and progress claims to resolution. Commentary sections include:

  • Duty of care, including general principles of liability, specific legislative provisions, obvious and inherent risks, mental harm, causation and contributory negligence.
  • Damages, with coverage of economic and non-economic loss, attendant care services and also exemplary, punitive and aggravated damages.
  • Responding to the claim, with guidance and practical tips for dealing with un-litigated claims, gathering factual evidence and obtaining expert opinion.
  • Settling it early, with helpful commentary on preparing for and attending mediations.
  • Going to court, including the procedure for responding to claims in either the District Court or the Supreme Court.

The guide also contains many helpful precedents, including:

  • Letters to various sources gathering information
  • Medical authorities
  • Example content for a mediation position paper for the defendant
  • Offers of compromise
  • Example content for pleadings and other documents
  • Letters to clients finalising the matter after settlement or hearing.

Practitioners using the By Lawyers personal injury publications will also benefit from the By Lawyers litigation publications: District Court – Civil and Supreme Court – Civil – Common Law Division.

Personal Injury Commission – NSW

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Overview

From 1 March 2021 the Personal Injury Commission (PIC) became the ‘one-stop shop’ for dispute resolution for workers compensation and motor accident claims in NSW.

The PIC has two divisions with a single point of entry via an online portal. The PIC takes over from the Workers Compensation Commission, which has been abolished. The PIC also takes over most of the dispute resolution functions from the State Insurance Regulatory Authority (SIRA) regarding motor accident claims.

The idea of the consolidation is to gain efficiencies via a single entity, especially with medical assessments and medical dispute determination. Medical assessors for both workers compensation and motor accidents claims, along with merit reviewers for motor accident matters and mediators for workers compensation matters, are appointed by the President of the PIC and operate under the PIC legislation.

The substantive law does not change.

The By Lawyers Workers Compensation and Motor Accidents publications – both Prior to 1 December 2017 and From 1 December 2017 – have all been be amended.

Legislation

Personal Injury Commission Act 2020;

Personal Injury Commission Regulation 2020; and

Personal Injury Commission Rules 2021.

What the PIC does

The PIC is not a court but is headed by a President, who is a judge of a court of record. The PIC will publish its decisions.

The two divisions, Motor Accidents and Workers Compensation, have a common registry, and common practice and procedure wherever possible.

The PIC replaces the Workers Compensation Commission and determines all disputes under the Workplace Injury Management and Workers Compensation Act 1998 and the Workers Compensation Act 1987.

Disputes in relation to claims under the Motor Accidents Injuries Act 2017 (MAIA) and the Motor Accidents Compensation Act 1999 (MACA) previously managed and resolved by SIRA are now dealt with by the Personal Injury Commission. The PIC also takes over from the Motor Accidents Claims Assessment and Resolution Service (CARS) and the Medical Assessment Service (MAS).

The Act requires the PIC to deal with proceedings justly, quickly, cost-effectively and with as little formality as possible.

The rules of evidence do not apply and proceedings must be as informal as possible, including telephone conferences instead of formal hearings.

What the PIC does not do

Disputed common law damages claims still go to the District or Supreme Court. However, the PIC must mediate the dispute first and/or provide a certificate before proceedings can be commenced.

As it is not a court, the PIC cannot determine matters that involve federal jurisdiction. The PIC Act provides a mechanism to send proceedings that involve federal jurisdiction to the District Court.

The Workers Compensation Independent Review Office (WIRO) is now known as the Independent Review Office (IRO). It continues to manage disputes regarding insurers previously managed by WIRO, with the addition of CTP insurers for motor accident claims. IRO also continues WIRO’s previous responsibility for the funding of workers compensation claims via the existing ILARS grants.

No change to the substantive law

The establishment of the PIC and the transfer to it of dispute resolution functions does not affect the underlying substantive law.

There is no change to the entitlements of injured persons to damages, benefits and entitlements under either workers compensation or motor accidents legislation.

Transitional provisions

Transitional provisions are set out in the Personal Injury Commission Regulation 2020.

For existing matters – that is, claims lodged before the commencement of the PIC on 1 March 2021 – the PIC deals with disputes and medical assessments. However it does so under the previous legislative framework – so the Workers Compensation Commission Rules 2011 and the existing provisions of the motor accidents legislation. That includes appeals, so for any arbitrated decision that was heard before 1 March 2021, but which is appealed after 1 March 2021, the appeal proceeds on the basis of the pre-existing legislation.

By Lawyers keeps you up to date!

All relevant By Lawyers publications have been updated in line with the commencement of the Personal Injury Commission. Commentary and precedents have been amended, replaced or added wherever required in our Workers Compensation, Motor Accidents and District Court publications.

101 Costs Answers – ALL STATES

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101 Costs Answers is the latest addition to the By Lawyers ‘101’ series of helpful reference materials.

Located in the Reference materials folder on every By Lawyers matter plan, this publication contains valuable commentary and precedents on all aspects of legal costs.

The precedents include all of the By Lawyers costs agreements/client services agreements and costs disclosures, drawn together from all By Lawyers publications into a convenient single publication.

The By Lawyers costs agreements are compliant with the strict requirements of the various state laws. They cater for all areas of law, with detailed recitals of the scope of work usually undertaken in each type of matter. This not only defines the retainer but makes it easy for practitioners to produce documents quickly upon engagement.

The 101 Costs Answers commentary includes:

Disclosure requirements

The commentary helps practitioners to navigate some of the more complicated disclosure requirements including regulated costs and the specific obligations for different types of litigation matters. The effect of non-disclosure is also covered.

Disbursements

Commentary on defining and recovering disbursements includes relevant case law and examples. The By Lawyers costs agreements are drafted to clearly identify usual disbursements.

Counsel’s fees

The commentary deals with the contractual relationship between solicitors and barristers as well as disclosure requirements. With the solicitor responsible for payment of counsel’s fees regardless of the solicitor’s agreement with the client, the By Lawyers costs agreements include counsel’s fees as specific disbursements which the client is obliged to pay.

Debt recovery

Where debt recovery is necessary, 101 Costs Answers contains letters of demand and example pleadings to assist with the recovery of costs. There is also detailed commentary on costs assessment procedures and the relevant forms for each state are available on the matter plan.

Like all By Lawyers publications, 101 Costs Answers contains interactive links to relevant legislation and cases, which are always kept updated.

Personal Injury QLD

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The By Lawyers Personal Injury QLD publication has been reviewed, including the addition of a recent Supreme Court case relating to the extension of limitation periods.

Limitation periods are a critical consideration for practitioners advising and representing clients in personal injury claims. Strict limitation and notice periods apply. Extensions are possible under s 59 Personal Injuries Proceedings Act 2002, but good reasons for delay must be shown and the Court does not exercise its discretion to extend limitation periods lightly. Section 59 also applies to any extension of the limitation period that is granted under the Limitation of Actions Act 1974.

The issues relating to such an application were examined recently in Faram v Hensec Pty Limited [2020] QSC 327. The application to extend the limitation period in that case was refused where the applicant had failed to comply with the necessary pre-action procedures.

The By Lawyers Personal Injury QLD commentary deals in detail with limitation periods and pre-action procedures.

This review has also seen the commentary updated and revised for enhanced searchability.

Related By Lawyers guides for Queensland litigation include Motor Vehicle Accidents, Workers Compensation, District Court, Supreme Court and 101 Subpoena Answers.

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